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The Secretariat
Post Office Mediation
Complaint Review Working Group
10" September 2014
Dear Sir/Madam
POST Office Mediation Complaint Review and Mediation Scheme
I write further to recent discussions regarding the data that CEDR is able to provide to the
Scheme Working Group.
Mediations are conducted on the basis of having a confidential and without prejudice status and
that is the expectation of the parties. The specific terms of that status are detailed in paragraphs 4
and 5 of the mediation agreement currently being used for the scheme.
Specifically, the agreement states:
Every person involved in the Mediation:
4.1. will keep confidential all information arising out of or in connection with the
Mediation, including the fact and terms of any resolution, but not including the fact that
the Mediation is to take place or has taken place or where disclosure is required by law
to implement or to enforce terms of resolution or to notify their insurers, insurance
brokers and/or accountants; and
4.2. acknowledges that all such information passing between the Parties, the Mediator
and/or CEDR, however communicated, is agreed to be without prejudice to any Party’s
legal position and may not be produced as evidence or disclosed to any judge, arbitrator
or other decision-maker in any legal or other formal process, except where otherwise
disclosable in law.
4.3. CEDR is, however, authorised to communicate the following data to the Scheme
Working Group from time to time: number of mediations conducted per month, disputes
resolved, disputes progressed (progress has been made towards resolution), disputes
not resolved. CEDR will not provide the Working Group with the names of the parties,
any information related to how the mediation process itself was conducted or any
details related to the nature of any resolution.
CEDR’s Dispute Resolution Serv
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5. Where a Party privately discloses to the Mediator any information in confidence
before, during or after the Mediation, the Mediator will not disclose that information to
any other Party or person without the consent of the Party disclosing it, unless required
by law to make disclosure.
Providing data
CEDR is a contractual party to all the mediations we undertake but the Working Group does not
have that status and as a consequence, could not be given any information about the mediations
by CEDR in normal circumstances. In order to address the need to provide some information to
the Working Group paragraph 4.3 of the agreement (above) was added which gives CEDR explicit
consent from the parties to pass on the data indicated.
Reference to reporting to the Working Group is also made in the process guidance note which is
provided to the parties as follows:
Based on our experience with the Court of Appeal, CEDR will provide the Working
Group with information on the following:
1. Number of mediations conducted
2. Claims settled
3. Claims progressed (Progress has been made towards settlement)
4. Not Settled
CEDR will not provide the Working Group with any case specific information or any
information on the size of settlement’s reached.
For clarity the three classifications detailed above can be described as follows:
Claims settled: The parties agree a resolution to all of their differences.
Claims progressed: The differences have been significantly narrowed. Further negotiations
may or may not be undertaken.
Not Settled: No significant progress in terms of a resolution was achieved.
The first report is scheduled to be provided after 25 mediations and then again after 50, 75 and
100 mediations. These milestones where chosen in order to provide enough data to reach useful
conclusions and to protect the confidentiality of the parties.
My understanding is that the Working Group has requested that more detailed information about
each mediation be provided. However, the mediation agreement is very clear on what data the
parties are agreeing will be passed onto the Working Group. If CEDR were to provide any
additional information above and beyond the provision of P.4.3 we would be in contractual
breach of the agreement with the parties, CEDR’s own Code of Conduct and European Code of
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Conduct for Mediators which the Civil Mediation Council requires all UK providers to observe in
order to maintain accreditation.
Obviously for the reasons detailed above we are not in a position to provide any information
outside the remit of P4.3 to the Working Group or indeed any other third party.
We do understand the Working Group has a remit to oversee the process but the only way that
would allow CEDR to provide more specific information would be to expand the remit of P.4.3.
and therefore release information by agreement of the parties.
I would, however, advise caution in considering how far to extend the remit of P.4.3 because of
party sensitivities to publicity of what is meant to be, a private process. Consideration should also
be given to the potential for some applicants to be dissuaded from using the scheme at all if the
outcome of any mediation process is to be disclosed to a third party outside their control as they
may wish, or be advised, to reserve their own position for subsequent legal proceedings.
Yours sincerely
John Munton
Director of Dispute Resolution Services